Advice from former Chief Justice in 2009 should have been heeded
Former Tongan Attorney General John Cauchi has told Kaniva news the kingdom’s main political problems are caused by its constitution.
The current constitution, believed to have been drafted largely by Lord Dalgety, was produced by Lord Sevele’s government in 2010.
It has been described as the worst in the Commonwealth.
Cauchi’s comments come amidst political uproar in Tonga over the public consultation on the government’s six new Bills. The opposition and their supporters continue to claim the government is attempting to remove some of the king’s powers, a claim, the Acting Attorney General has denied.
Cauchi said the government’s current attempts to change laws and modify the constitution would not have been necessary if the kingdom’s democratic reforms had been based on the recommendations of the Constitutional and Electoral Commission chaired by former Chief Justice Gordon Ward.
The CEC recommended, among other things, a three year Parliamentary term, the removal of the king and Privy Council from executive government, public consultation on all government bills and full access to records of public meeting of Parliament by the public and the media. The CEC also considered submissions to either abolish Noble’s seats or to have Nobles elected by all voters.
The CEC was set up at the beginning of 2009.
In February 2009, a month after the appointment of the Commission, the Prime Minister, himself a former member of the pro-democracy movement, stated publicly that he did not support the push by the pro-democracy movement for the King to be stripped of his involvement in the selection of Parliament as well as other executive powers.
The Nobles opposed the setting up of the Constitutional and Electoral Commission.
Even before the CEC’s final report was submitted, Commissioners were concerned that they would be ignored and that Lord Sevele’s government would go its own way.
“The lengthy debate on the interim report in the Assembly with its frequent references to already entrenched views in the minds of many representatives does not bode well,” the Commission noted at the time.
“Coupled with the all too apparent lack of understanding of the aims or even of the actual contents of the interim report by some of the members of the House, it gives cause for some pessimism about the passage of this report and any consequent legislation through the House.”
Indications that the Government might pre-empt debate caused the Commission to comment:
“The recent statement by the Government only a few weeks before our report is due suggests an intention to press ahead with previously held opinions before they have seen the recommendations of the very Commission they established to make them. Regrettably, it is hard to view that intervention as anything but an intention to pre-empt any possibility our recommendations may be contrary to their chosen view.”
The Commission said it had evaluated the government’s written submission in the same way it evaluated every submission.
“If we do not support them, it is because, on an overall consideration of the issues, we have decided they are not the best course for Tonga. Presumably the Government’s submissions were put to us for such an evaluation. Now, it appears the Government may not be willing to have them measured by any other yardstick than its conviction that other opinions have little value or, perhaps, to have them measured at all.”
The recommendations of the CEC were not adopted and Lord Sevele’s government adopted its own submission.
The main recommendations of the 2009 Constitutional and Electoral Commission were:
- That the King and Privy Council should no longer be part of the Executive Government and
- the Executive Government should be the Cabinet answerable to the Legislative Assembly .
- Government was to be a Constitutional Monarchy rather than a Constitutional Government.
- The Government of this Kingdom was to be divided into three bodies: Cabinet, the Legislative Assembly and the judiciary.
- The Monarch would appoint as Prime Minister the elected member of the Assembly recommended by the Assembly under a selection procedure provided in the Constitution and the Monarch would appoint as Ministers those individuals nominated by the Prime Minister.
- The Privy Council, of which Cabinet used to be part, would be an advisory body.
- Cabinet was now limited to the Prime Minister and 11 Ministers nominated by him.
- There would be no unelected ministers or cabinet members.
- The Parliamentary term should be three years. The Commission observed that “the longer the term, the less effective will be the power of voters” to control an ineffective or poor government.
- The right of every representative to introduce a Bill should be enshrined in the Constitution.
- There should be provision to secure sufficient time for proper consideration of all Bills of public interest by the members of the general public.
- All members of the public, including the media, should have full access to the Journal of the proceedings of the Assembly and to all the records of the public meetings of the Assembly.
The Commission received several submissions to remove the Nobles from Parliament or to have them elected by all eligible voter, not just other Nobles.
“Measured against current perceptions of democracy in much of today’s world, there can be no justification for the presence of the Nobles in the Assembly,” the Commission noted.
However, it did not pursue this line, saying that the Nobles should stay under the present system. If elected by the whole electorate, it was likely that the same Nobles would keep being returned to Parliament because voting would be based on ties of kainga and ha’a.
“The decision to retain them will be seen by many outside our borders as a failure to grasp a chance to achieve democracy,” the Commission aid.
“We define democracy by more than the right to elect a representative parliament. Much that truly defines democracy is already enshrined in traditional Tongan values. … at this stage, we feel the continued presence of the Nobles in the new and untried representative parliament will be accepted by most Tongans as a sensible and, possibly, necessary influence.”
Four years after Wards’ review, Peter Pursglove, a legal consultant in Constitutional Law from Trinidad and Tobago, reviewed the 2010 consultation on behalf of the Commonwealth Secretariat.
Cauchi said Pursglove’s review largely supported the findings of the Ward’s constitutional review.
Pursglove said Tonga’s 2010 constitution, which was produced by Lord Sevele’ government, was poorly written, promoted secrecy, compromised the role of the judiciary and parts of it may have been illegal.
His report said the constitution did not uphold democracy, that the Privy Council was undemocratic and unaccountable and the judiciary lacked accountability and transparency.
“The present Constitution of Tonga can lay claim to being the most poorly structured and drafted Constitution of any Country in the Commonwealth,” Pursglove said.
“The autocratic and unaccountable judicial structure introduced by the Constitution must not be allowed to frustrate the continued development of Tonga on its pathway to democracy and risk destroying public confidence in the new constitutional arrangements introduced in 2010.
“Changes must be made to ensure that the constitutional provisions relating to the Judiciary comply with Commonwealth principles on good governance and democracy.”
Chief Justice Gordon Ward
Ward clashed with the Tongan government in 2003 when he ruled against an attempt by the government to ban Kalafi Moala’s newspaper Taimi ‘o Tonga.
He also declared illegal a subsequent ordinance imposed by King Taufa’ahau Tupou IV, sitting as chairman of the Privy Council.
In 2004 he resigned in protest at attempts to ban the newspaper.
He then moved to Fiji where he was President of the appeal Court.
In 2007 He and five other judges resigned in protest at the 2006 coup.
He was the Chief Justice of the Turks and Caicos Islands from 2008 to 2012 and was knighted in the 2012 New Year Honours for services to the judiciary.
Kaniva news says:
Speaking at Auckland University Law School in April 2010, Tongan Solicitor General, ‘Asipeli ‘Aminiasi Kefu said that some Tongans still did not entirely support the reforms that were eventually made.
The constitutional changes were not medicine which would provide the answers to all issues, he said.
He predicted it could take two to three elections before the system stabilised.
Tonga has now elected a democratic government twice – the second time after a dramatic intervention by the king – but have Tongan politics stabilised?
All the evidence says that the current constitution is seriously flawed and needs to be reformed.
Former Tongan Attorney General John Cauchi says the problems lie in not having adopted the suggestion of the 2009 constitutional review.
Given the current situation, we believe the time has come to revisit the Constitutional and Electoral Commission’ recommendations.
Perhaps in its final report we will find the key to constructing a constitution that will not, in Pursglove’s words, “frustrate the continued development of Tonga on its pathway to democracy.”
The main points
- Former Tongan Attorney General John Cauchi has told Kaniva news the kingdom’s main political problems are caused by its constitution.
- The current constitution, believed to have been drafted largely by Lord Dalgety, was produced by Lord Sevele’s government in 2010.
- It has been described as the worst in the Commonwealth.
For more information
Tonga’s constitution costly, poorly written and undemocratic, report says